Moshe Negbi, a well-known legal commentator
for the Ma'ariv daily as well as for Kol Yisrael radio, was interviewed here
last week. One of the subjects discussed was the legality or lack thereof
of the Jewish settlements in Judea, Samaria and Gaza.
The Arab claim concerning the illegality of the Jewish settlements in Judea,
Samaria and Gaza could not have found a more eloquent spokesman than Moshe
Negbi. He very fervently - stressing most firmly that he does not allow political
considerations to influence his opinions, but rather speaks as a "jurist
and nothing else" - tried to convince us that the settlements represent a
violation of the laws of war and that they therefore are an international
crime. He also claimed that all, or almost all, experts in international
law universally accept the view that the settlements are illegal. While I
have no pretensions to even a fraction of the knowledge and understanding
of law that Negbi possesses, I do believe that I have acquired certain reading
comprehension skills. I have read the relevant material in the public
international legal literature and my conclusions concerning the position
of international law on the legality of the settlements - based on the opinions
of world-class experts in international law - are diametrically opposed to
those of Negbi.
1920 - The Historic Bond Becomes a Legal Right
In 1920, after World War I had ended, the Allied Supreme Council that assembled
at San Remo, Italy, decided, in accordance with the Balfour Declaration of
November 2, 1917, to assign the mandate for the establishment of a national
home for the Jewish people in Palestine to Great Britain. This turned the
right of the Jewish people over Eretz Israel into a right recognized by
international law.
The historic bond that the Jewish people had with Eretz Israel consequently
became a right legally recognized by the 52 members of the League of Nations.
The United States joined the League at a later time, not having been a member
of the international organization at the time. [and held a separate forum
with identical final documents in 1925, establishing a homeland for the Jews
in Palestine. ~Shosh]
The significance of the recognition of the right of the Jewish people to
Eretz Israel by international law was in its acknowledgment of the justice
of the Jewish and Zionist claim to the land that had been stolen from the
Jewish people by foreign occupiers and their right to have it restored to
them. The recognition also voided the legal validity of the occupation of
Eretz Israel by foreigners as well as the expulsion of Jews from it.
The Mandate over Palestine, which anchors the rights of the Jewish people
to their country in international law, states that "No Palestine territory
shall be ceded or leased to, or in any way placed under the control of, the
Government of any foreign Power," and that "The Administration of Palestine
. . . shall facilitate Jewish immigration under suitable conditions and shall
encourage . . . close settlement by Jews on the land, including State lands
and waste lands not required for public purposes.
The British government did not fulfill the aim of the Mandate where immigration
and settlement were concerned (the decrees of the White Paper) in gross violation
of its obligations under the Mandate. Additionally, it abused its role as
the guardian of Eretz Israel for the purpose of the establishment of a national
home for the Jewish people. In September 1922, just months after the confirmation
in writing of the Mandate, Britain decided to separate the eastern bank of
the Jordan from the western part and transfer control of the eastern side
to the Arabs (Transjordan).
Subsequently, only western Eretz Israel - from the Mediterranean to the Jordan
- the "West Bank" - remained, in the eyes of international law, as the area
designated for the establishment of a national home for the Jewish people.
It was this separation on which the peace treaty with Jordan was based, whereby
Jordan kept the land on the eastern bank of the Jordan River and became the
'palestinian homeland'. This separation specifically reserved the West Bank
for Eretz Yisrael even as it gave the Eastern bank, which should ALSO have
been part of Israel, away.
This legal status of this area - in the view of international law - has not
changed to this day. Even the United Nations partition plan of 1947 was rejected
by the Arab world, and on May 15, 1948, the day the British Mandate over
Palestine ended, the Arabs attacked the newly born state with the express
goal of annihilating it. It should be stressed that the partition plan was
in fact no more than a recommendation, and had no power to bind the sides,
and this too was, as stated, rejected by the entire Arab world and therefore
became null and void in the eyes of international law. Judea and Samaria
are part of the Jewish homeland
Did the Jewish People Lose its Rights to Those Areas of Eretz Israel Lost
in the War of Independence, 1948?
The answer to this question is no. Egypt did not establish sovereignty over
the Gaza Strip and the sovereignty of Jordan over Judea and Samaria was
recognized by only two countries, Britain and Pakistan. In fact, Jordan never
held legal sovereignty over the areas of Judea and Samaria, and has relinquished
any claims to sovereignty there. The status and rights of Jordan over the
parts of Eretz Israel it occupied for 19 years
were at most the rights of an occupying force.
(See
IMRA
comment.)
In consideration of the fact that Israel succeeded in restoring this territory
in a war of defense that had been forced upon it, while Egypt and Jordan
took the same territories by means of illegal aggression in the War of
Independence, Israel's rights over the areas of Judea and Samaria take priority
over the rights of the hostile Arab countries. These areas, therefore - from
the point of view of international law - never ceased to be part of the western
Eretz Israel designated in its entirety for the establishment of a national
home for the Jewish people, including of course, the right of Jews to settle
in their land as established in the British Mandate.
Did the End of the British Mandate over Eretz
Israel Generate Any Change in the Rights of the Jewish People Over its Land
From the Point of View of International Law? The answer to this question
is also no. Article 80 of the UN charter was written to defend the validity
of rights determined in the Mandate even after the mandate system no longer
exited. After the areas of western Eretz Israel were liberated from the Arab
occupier in the Six Day War (1967), returning them to the control of the
Jewish people, all the obligations according to international law remained
as they were. The purpose of these areas, after all, was that they serve
as the basis for the establishment of a national home for the Jewish people.
It is in fact the duty of the Jewish state, which replaced the British Mandate,
to fulfill these obligations. Israel's status in these territories, therefore,
is in no way that of an occupying force, because in accordance with the outlook
that has guided the State of Israel since its establishment, Israel does
not annex territory that before 1948 was part of mandatory Eretz Israel.
(i.e. Israel does not annex it's own land).
Israel does not consider itself to have the
status of an occupying force because it never considered the Arab countries
that invaded Eretz Israel in May 1948 as having any sovereign rights over
the territory of Eretz Israel they occupied. They were merely military occupiers.
After this territory was restored to the control of the State of Israel,
it became the obligation of the Jewish state - both from a Jewish Zionist
standpoint as well as from the point of view of international law - to realize
the rights of the Jewish people over the Western part of Eretz Israel in
its entirety, including the right of settlement.
UN Resolution 242 Does Not Require a Return to the
1967 Borders The media often refers to settlements and the presence of the
IDF in the West Bank and Gaza as "illegal under international law." This
is the Palestinian viewpoint, which is derived from their citation of UN
Resolution 242, which states "the withdrawal
of Israel's forces from territories occupied in the recent conflict [1967]."
The authors of this resolution have stated publicly and repeatedly that they
omitted the words "all territories occupied" and FURTHER, they added phraseology
which called for "an accepted settlement" between the parties because "all
States have the right to live within secure and recognized boundaries."
It is evident both from the paper reprinted
today and UN Resolution 242 that Israel does INDEED have every right to
sovereignty and settlement in the West Bank and/or Gaza.
The Geneva Convention Does Not Void the Mandate
This position, which views the right of Jewish
settlement in Judea, Samaria and Gaza as anchored in the rules of international
law, is supported by a once-highly placed figure in the American administration,
one of the drafters of the celebrated UN Resolution 242, a Deputy Secretary
of State and professor of international law, Eugene Rostow. He wrote, The
primary objective of the Palestine Mandate was different [from the mandate
over Arab countries] . . . The Allies established the Palestine Mandate in
order to support the national liberation of 'the Jewish people' because of
'their historic connection to the land.' The mandate encouraged the Jews
to found a national home in Palestine, and gave them the right to establish
a "National Home" in Palestine and granted them the right to make close
settlements without prejudice to 'the civil rights and religious rights of
the existing non-Jewish communities in Palestine.' The term 'civil rights'
in this sentence is carefully distinguished from 'political rights.'
ss |
 |
The right of the Jewish people to settle in
Palestine has never been terminated for the West Bank . . . The only way
which the mandate right of settlement in the West Bank can be brought to
an end is through the annexation of the area by an existing state or by the
creation of a new one." Rostow stresses that the right that arose by virtue
of the Mandate is perpetual, as long as the territory of the Mandate is not
turned into an independent state or does not become part of an existing one.
Therefore, from the point of view of international law, the recognized right
of the Jewish people over all areas of western Eretz Israel is completely
valid, including the right to settle throughout the territory.
Rostow also rejects the claim that the act of settlement violates article
(49)6 of the Fourth Geneva Convention of 1949, which forbids an occupying
power from deporting or transferring parts of its own civilian population
into the territory it occupies. Professor Rostow writes that the settlers
of Judea, Samaria and Gaza were not transferred to live there as a result
of deportation or "transfer." "The Jewish settlers in the West Bank are most
emphatically volunteers," he writes. "They have not been "deported" or
"transferred" to the area by the Government of Israel and their movement
involves none of the atrocious purposes or harmful effects on the existing
population that is the goal of the Geneva Convention to prevent [deportations
for the purpose of extermination, slave labor, etc.]." (This article was
written to ENSURE that another Holocaust is prevented. ~Shosh)
Furthermore, writes Professor Rostow, the Geneva Convention applies only
to acts by one signatory country "carried out in the territory of another.
The West Bank is not the territory of signatory power, but an unallocated
part of the British Mandate. Even if the Geneva Convention could be interpreted
as to prohibit acts of settlement during the period of occupation, it can
in no way bring to an end the rights granted by the Mandate. It is hard,
therefore, to see how even the most narrow and literal-minded reading of
the Convention could make it apply to the process of Jewish settlement in
the territory of the British Mandate west of the Jordan River."
And he continues, "But how can the Convention be deemed to apply to Jews
who do have a right to settle in the territories under international law?
- a legal right assured by treaty and specifically protected by Article 80
of the United Nations Charter, generally known as the "Palestine Article."
The Jewish right of settlement in the area is equivalent in every way to
the right of the existing population to live there."
Regarding the Geneva Convention, it should be pointed out that the willingness
of the Government of Israel to recognize the validity of the Geneva Convention
over the areas of Judea, Samaria and Gaza was merely and exclusively for
humanitarian reasons, and not for any other purpose. Consequently, Moshe
Negbi's claim that "If Israel can annex East Jerusalem, then by the same
token, Egypt can declare tomorrow that New York is part of Egypt," is completely
baseless. New York is part of a sovereign state - the United States of America
- meaning that Egypt cannot declare sovereignty over it. Judea, Samaria and
Gaza, on the other hand, are not part of any country and furthermore, from
the point of view of international law, belong to the Jewish people.
Accordingly, the State of Israel - the state of the Jewish people - is entitled
to declare sovereignty over the areas which according to international law
belong to it. It certainly has the right to allow Jews to settle there, pursuant
to international law.
A long list of supporters Moshe Negbi's attempts to undermine the rights
of his own people to their homeland notwithstanding, Douglas Feith, who served
as Deputy Assistant Secretary of Defense and Middle East specialist on the
White House National Security Council staff during the Reagan administration,
holds a different view. He writes "[Although] the Mandate distinguished between
Eastern and Western Palestine . . . it did not distinguish between the region
of Judea and Samaria and the rest of Western Palestine. No event and no armistice
or other international agreement has terminated the Mandate-recognized rights
of the Jewish people, including settlement rights, in those portions of the
Mandate territory that have yet to come under the sovereignty of any state.
Those rights did not expire upon the demise of the League of Nations, the
creation of the United Nations, or the UN General Assembly's adoption of
the 1947 UN Special Committee on Palestine plan for Western Palestine."
Feith explains that if the Jews do not have recognized legal rights to their
claim to Judea and Samaria as part of their state, then they lack such rights
in any part of Eretz Israel because all the rights derive from "the historical
connection of the Jewish people with Palestine recognized in the Mandate."
[This is why so many peace supporters in Israel draw the line at giving away
the Temple Mount. The Mount is our strongest historical connection to the
land of Israel and if we give that away, we give away the BASIS by which
ANY LAND in the region is allocated as a Jewish State. To give away the Mount
gives away the right to a Jewish State at all and paves the way for a legal
overturning of Israel's right to existence."] ** See WHY
HEBRON below.
He adds that the claim that the Jews do not have a legal claim to Judea and
Samaria could be catastrophic concerning other claims the Jews have to
sovereignty over Israel within its pre-1967 borders.
I have cited here only two experts in international law who hold this view,
but the list of jurists and members of the administration who support the
legality of Jewish settlement in Eretz Israel is very long and includes such
names as Julius Stone, Professor Yehuda Bloom and others. It could at least
be expected that Moshe Negbi, who undoubtedly is aware of these views,
demonstrate some measure of integrity and acknowledge the existence of the
legal positions with which he is not comfortable and which run counter his
own political views.
In any case, before accusing Israeli governments of being instrumental in
the commission of international crimes, he might do well to consider this
question: Would not the deportation of Jews from their place of settlement
- as the Arabs demand as part of their call for the dismantling of the "illegal"
settlements - in fact be itself an international crime - as deportation is
termed in international law? Would Mr. Negbi feel comfortable with the fact
that the only place in the world (perhaps outside of Saudi Arabia) where
the policy of "Judenrein" is implemented de jure and de facto is in the only
homeland Jewish people have?
Not only is the right of settlement in the land
of Israel an integral part of the Zionist vision - it is strongly anchored
in the precepts of international law.
**WHY
HEBRON (Insert by Zionsake Editor)
Why the focus on Hebron? Because an integral part of the destruction of Israel
in stages is the denial of Jewish historical rights and ties to the Land
of Israel. Hebron, with the only intact Second Temple Period structure in
the region - where the Patriarchs are buried - is second only to Jerusalem
in its Jewish identity.. In fact, its ties to the Jewish People PREDATE Jerusalem
itself.
But that's not all. The Hebron model of the
sharing of holy places stands in sharp contrast to the Jerusalem model. In
Jerusalem, the Moslems have successfully barred Jewish worship anywhere in
the area of the Temple Mount.
In sharp contrast Jews and Moslems SHARE the
use of Ma'arat Hamachpela - with prayer services usually at adjacent rooms
within the structure and with a special arrangement for the entire structure
to be used for Moslem or Jewish prayer on their respective special
holidays.
The success of this model of sharing is enathema
to Arafat because it proves that there is an alternative to the "all-or-nothing"
Jerusalem model.
Dr. Aaron Lerner
IMRA'S Weekly Commentary on Israel National Radio 11 October 2001
Broadcast in English on Thursday nights at 10:00
PM on 98.7 FM and on 1539 AM throughout
Israel - recording available on
http://www.IsraelNationalNews.com
and
http://www.IsraelNationalRadio.com
( Back to
"Hebron")
****
Europe
to Tax Israeli Settlement Goods
(since the Settlement are in so-called
"Occupied" territories)
http://www.palestine-pmc.com/news/new-26-2-02.html
February 26, 2002
Palestine Media
Center-PMC
[IMRA: For the territories
to have the status of "occupied" there had to be
a recognized sovereignty
in the territories in 1967 before Israel sent in
forces. There was, however,
a "sovereignty gap" from 1948 to 1967 in the
territories with the status
of the territories in limbo since the end of the
British Mandate. As a result
the legal rather than political arguments
concerning settlements are
not relevant to this situation.]
imra-digest
Wednesday, Feb. 27 2002 Volume 01 : Number 555
(Back to "occupied"
| Belief Statements |
Israel Boundaries) |
